Chicago West Div. Ry. Co. v. Mills

• Citation: 1882 WL 10481,105 Ill. 63
• Parties: CHICAGO WEST DIVISION RAILWAY COMPANYv.PHOEBE R. MILLS.
• Decision Date: 20 November 1882
• Court: Supreme Court of Illinois

105 Ill. 63

1882 WL 10481 (Ill.)

CHICAGO WEST DIVISION RAILWAY COMPANY

v.PHOEBE R. MILLS.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. KIRK HAWES, Judge, presiding.

On the 4th of May, 1876, appellee sued appellant, in the Cook circuit court, in an action on the case, for negligence. The general issue, and also special pleas of accord and satisfaction, and a special plea of release, were pleaded. The similiter was added to the general issue. To the plea of accord and satisfaction it was replied, that plaintiff, at the time she received said payment, etc., was unconscious, and wholly incapable of understanding the meaning and effect of what she did, etc., and to the special plea of release, non est factum was replied. Subsequently, the parties stipulated, in writing, that the plaintiff, under her replication of non est factum, might show any fact or facts, or any defence which it would be competent for her to prove under any special replication well pleaded to the pleas of release, and that the defendant might meet such facts or defence in the same manner and with like effect as they could do under any rejoinder legally interposed. At the May term, 1877, of that court, trial was had, resulting in a judgment for the plaintiff. The defendant appealed to this court, and the judgment of the circuit court was, at our September term, 1878, reversed, and the cause remanded for a trial de novo. The case is reported as Chicago West Division Ry. Co. v. Mills, 91 Ill. 39, to which reference is made for a full statement of the facts. After the remanding of the cause, and at the January term, 1882, of the Cook circuit court, another trial was had, resulting, as the first, in a judgment in favor of the plaintiff. From that judgment appeal was prosecuted to the Appellate Court for the First District, and that court, at its March term, 1882, affirmed the judgment of the circuit court. This appeal is from that judgment. The errors assigned raise the questions discussed in the opinion.

Mr. FRANCIS H. KALES, for the appellant:

The plaintiff having failed to give any evidence tending to prove certain material allegations in her declaration, could not recover. The court, therefore, erred in not instructing the jury “that upon the evidence in this case the plaintiff can not recover.”

The court erred in giving the plaintiff's first instruction, for the reason the evidence did not show the facts upon which it was predicated. The conduct of the plaintiff plainly indicated to the driver that she intended, after coming down on the cars and not alighting at the end of the route, to make the return trip on the same car. She gave no signal of any change of purpose, or of a desire to alight, so that the driver, on starting, had no notice she was getting off. The driver was not bound to stop, or wait, unless he knew, or might have known by due care, that a passenger wished to get off the car. Chicago and Northwestern Ry. Co. v. Dimmick, 96 Ill. 42; Chicago, Burlington and Quincy R. R. Co. v. Johnson, 103 id. 512; Illinois Central R. R. Co. v. Green, 81 Id. 19; Railroad Co. v. Delaney, 82 Id. 98; Schmidt v. Railroad Co. 83 Id. 405.

That part of plaintiff's first instruction, to the effect that the plaintiff's release, to be valid, must have been “executed by the plaintiff under an agreement which she was, at the time of making it, capable of understanding and intelligently consenting to,” is erroneous. The disability pointed out as a guide to the jury was not that of a temporary impairment, however caused, of her mental faculties, but was made to depend upon the quantum of capacity and general intelligence which she possessed.

Mr. S. K. Dow, for the appellee:

The evidence sustained the material allegations of the declaration. The gravamen of the action is not negligence in not stopping the car on request, but that the defendant having stopped the car for passengers to alight therefrom, among whom was the plaintiff, it suddenly and violently started its car, without having waited a reasonable time for appellee to alight. Hence the court properly refused to instruct the jury to find for the defendant on the evidence.

As to the negligence of the parties, the trial court found, from the evidence, the material and principal fact that the plaintiff was injured through the negligence of the defendant, and the Appellate Court having confirmed this finding, the decision of the Appellate Court as to the facts is final and conclusive. Wrought Iron Bridge Co. v. Commissioners of Highways, 101 Ill. 518.

The allusion in the instruction to the plaintiff's state of mind at the time of executing the release, could not be understood as an ordinary want of intelligence, and was no doubt understood in reference to her state of mind at the particular time, arising from the use of opiates, etc. As to mental capacity to contract, see Yore v. McCord, 74 Ill. 33; 1 Redfield on Wills, 123, 124. Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The several alleged errors in the rulings below will be passed upon in the order of their discussion in the argument on behalf of appellant.

First--The point is made that it is alleged in the declaration that it became the duty of the defendant, upon the plaintiff's request, to slacken speed, so as to enable her, in the exercise of due care, to alight from the car without injury; that it neglected to do so, but on the contrary, on the request of the plaintiff, the defendant caused its car to be stopped, and the plaintiff, with the defendant's consent and permission, attempted to alight from the car, and while so attempting the defendant carelessly, etc., caused the car to be suddenly and violently started, etc., whereby, etc.,--whereas there is no evidence in the record tending to prove that the plaintiff requested the defendant to stop for her to alight, or that it did so, or that she obtained the defendant's consent or permission to alight when she attempted to do so, or that the defendant or its servants knew she was attempting to alight when she undertook to do so, and that therefore the circuit court should have given, as asked, the defendant's fourth instruction, namely, that “upon the evidence in this case the plaintiff can not recover.”

A party is not bound to prove matters which are merely surplusage. If the proof does not correspond with such matters, the variance is immaterial. ( Pennsylvania Co. v. Conlan, 101 Ill. 93.) If the whole of an averment may be stricken out without destroying the plaintiff's right of action, it is not necessary to prove it. ( Williamson v. Allinson, 2 East, 446; Maxwell v. Maxwell, 31 Maine, 184.) The gist of the present action is the negligence of the defendant in starting the car while the plaintiff was in the act of alighting. It was of no consequence whether the car was stopped at the instance of the plaintiff or not, since the act of stopping was productive of no injury, and is in no respect complained of. It is sufficient while the car was stopped parties were getting off, and the plaintiff, while attempting also to do so, with due care, was injured by reason of the negligent starting of the car by the defendant's servant. Nor could it be material to determine whether plaintiff asked or obtained permission of the defendant or its servants to alight. The car being stopped, from whatever cause, at a place where passengers were in the habit of alighting, she had the undoubted right to alight without making any request or obtaining any permission in that regard, and if the defendant's servants knew, or by the exercise of due care would have known of it, it was negligence on their part to start the car before she had a reasonable time in which to alight. So it would seem clear, if the allegation that counsel insists there is no evidence tending to prove, were stricken from the declaration, it would still be substantially good. Where there is evidence tending to prove a cause of action, it is an invasion of the province of the jury to instruct them that the plaintiff can not recover. Guerdon v. Corbett et al. ...